United India Insurance Co.Ltd vs Rizwana Begum W/O Sardar Miyan And ...
2022 Latest Caselaw 5330 Kant

                            1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 24TH DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.32734/2013 (MV)

Between:

United India Insurance Company Ltd.,
Jawali Complex, Super Market,
Gulbarga through its Divisional Manager.

                                              ... Appellant
(By Sri Rahul R. Asture, Advocate)

And:

1.     Rizwana Begum W/o Sardar Miyan,
       Age: 45 years, Occ: Coolie,
       R/o H.No.5-992/4, Yadullah Colony,
       Near Water Tank, Gulbarga-585 104.

2.     Vineet S/o Veerbhadrappa,
       Age: Major, Occ: Owner of
       the Auto-Rickshaw
       Bearing Regn.No.KA-32/A-2332,
       R/o Mahagaon village,
       Tq. Dist. Gulbarga-585 104.
                                           ... Respondents

(By Sri Basavaraj R.Math, Advocate for R1;
 R2-served)
                                      2




        This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act praying to call for the records in
MVC No.874 of 2011 on the file of the Principal Senior Civil
Judge & MACT, Gulbarga and set aside and modify the
judgment and award dated 13.08.2013 by allowing this
appeal with costs and grant such other relief and further
reliefs,     as    this   Court    deems   fit,   in    the    facts   and
circumstances of the case.


        This appeal coming on for Hearing, this day, the
Court delivered the following:-


                              JUDGMENT

This appeal is filed by insurance company under

Section 173(1) of the Motor Vehicles Act (for short 'the

Act') challenging the judgment and award dated

13.08.2013 passed by the Principal Senior Civil Judge

and Motor Accident Claims Tribunal, Gulbarga, (for short

hereinafter referred to as 'the Tribunal') in MVC

No.874/2011.

2. Parties are referred to as per their ranking

before the Tribunal. Appellant is respondent No.2,

respondent No.1 is the petitioner and respondent No.2 is

respondent No.1 before the Tribunal.

3. Facts giving rise to filing of this appeal are as

under:

On 04.07.2009 at about 2.30 p.m., the petitioner

was proceeding towards Ratkal village in the

Autorickshaw bearing registration No.KA-32/A-2332.

The driver of the said auto drove the auto in a high

speed and in a rash and negligent manner, due to

which, the auto turned turtle. As such, petitioner fell

down and sustained grievous injuries. He took

treatment for the injuries sustained in the accident for

which he spent huge amount. Hence, the petitioner filed

claim petition under Section 166 of the Act seeking

compensation due to the injuries sustained in the road

traffic accident.

4. Respondent No.1 appeared and filed written

statement denying the averments made in the claim

petition and denied the age, avocation and income of

the petitioner. Respondent No.1 also denied the manner

of the accident and the injuries sustained by the

petitioner. It is contended that the driver of the

offending auto was holding valid and effective driving

licence as on the date of the accident and the vehicle

was insured with respondent No.2 as on the date of the

accident and hence, respondent No.2 is liable to pay

compensation and on these grounds, prayed to dismiss

the claim petition against respondent No.1.

5. Respondent No.2 filed written statement

denying the averments made in the claim petition and

denied the age, occupation and income of the petitioner.

It is contended that there is violation of the terms of the

policy as the driver of the auto drove the auto outside

the permit limit and contended that it is not liable to pay

compensation. On these grounds, respondent No.2

prayed to dismiss the claim petition against respondent

No.2.

6. The Tribunal on the basis of the pleadings of

the parties framed the issues and recorded the

evidence. In order to prove the case, petitioner

examined herself as PW.1 and in order to prove the

disability, examined the doctors as PWs.2 and 3 and got

marked the documents as Exs.P1 to P12. Respondent

No.2 examined its official as RW.1 and got marked the

documents as Exs.R1 and R2.

7. The Tribunal, after recording the evidence

and considering the material on record, recorded finding

that the petitioner has proved that he has sustained

injuries in the road traffic accident which occurred due

to the rash and negligent driving of the driver of the

offending auto and that the petitioner is entitled for

compensation and consequently, allowed the claim

petition in part and awarded compensation of

Rs.2,93,880/- with interest at the rate of 6% per annum

from the date of petition till the date of realization and

held that the respondents are jointly and severally liable

to pay compensation and directed respondent No.2 to

pay the compensation amount.

8. Respondent No.2 has filed this appeal

challenging the judgment and award passed by the

Tribunal on the ground of liability and quantum of

compensation.

9. Heard the learned counsel for respondent

No.2 and the learned counsel for the petitioner.

10. The learned counsel for respondent No.2

submits that the autorickshaw was plying beyond the

permit limit. Thus, there is violation of terms and

conditions of the policy. Hence, respondent No.2 is not

liable to pay compensation. He further submits that the

petitioner is aged about 42 years, but the Tribunal has

applied the multiplier of 16 which is on the higher side.

On these grounds, he prays to allow the appeal.

11. Per contra, learned counsel for the petitioner

submits that even if the vehicle is plying outside the

permit limit, the insurance company is not exonerated

from the liability. In order to buttress his arguments, he

has placed reliance on the judgment of this Court passed

in MFA No.30752/2011 and connected matters disposed

of on 11.07.2018. He further submits that the

compensation awarded by the Tribunal is just and

proper and does not call for interference.

12. I have perused the records and considered

the submissions made by the learned counsel for the

parties. The point that arises for consideration is with

regard to liability and quantum of compensation.

13. The occurrence of the accident and the

injuries sustained by the petitioner in the said accident

is not in dispute. In order to prove that the accident has

occurred due to rash and negligent driving of the driver

of the offending vehicle, the petitioner has produced

copy of charge sheet which is marked as Ex.P2. From

perusal of Ex.P2, it is clear that the accident occurred

due to rash and negligent driving of the driver of the

offending vehicle.

14. Insofar as liability is concerned, it is the case

of respondent No.2 that the vehicle was plying beyond

the permit limit. In order to substantiate its contention,

respondent No.2 examined its official as RW.1. RW.1, in

the examination-in-chief, has reiterated the averments

made in the written statement and further produced

copy of permit as Ex.R1. Respondent No.2 admitted

that as on the date of accident there was permit, but it

is the case of respondent No.2 that it was plying beyond

the permit limit. The vehicle had valid permit, but it was

taken beyond the permit limit. There is some difference

between the two. If there is no permit at all, or if a

transport vehicle is used for a purpose not allowed by

the permit as envisaged in Section 149(2)(a)(i)(c), the

Insurance company need not indemnify the liability of

the insured for violation of policy condition. But where a

vehicle is taken beyond the limits, it cannot be said that

there is violation of policy condition, it is contravention

of permit condition which is punishable according to

Section 192A of the MV Act. The said view is supported

by the judgment of this Court in MFA No.30752/2011

and connected matters. The Tribunal was justified in

fastening the liability on respondent No.2. I do not find

any illegality in the finding arrived by the Tribunal.

15. Insofar as quantum of compensation is

concerned, it is the case of the petitioner that the

petitioner was doing coolie work and was earning

Rs.6,000/- per month and she was aged about 43 years

as on the date of the accident. The accident is of the

year 2009. The Tribunal has taken the income of the

petitioner as Rs.3,000/- per month. The Tribunal while

applying multiplier has committed an error in

considering the age of the petitioner as 35 years relying

on the wound certificate, but the petitioner has admitted

her age is 43 years as shown in the cause-title of the

claim petition. The claim petition was filed on

02.12.2011 and the accident occurred in the year 2009.

As per the records, the petitioner was aged about 41

years and the multiplier applicable to the age group of

the petitioner is 14 as per the judgment of the Hon'ble

Apex Court in the case of Sarla Verma vs. Delhi

Transport Corporation reported in (2009) 6 SCC

121. Though the petitioner has contended that she was

earning Rs.6,000/- per month, in order to substantiate

the same, she has not produced any evidence. In the

absence of proof of income, the notional income of the

petitioner has to be taken as per the chart provided by

the Karnataka State Legal Services Authority. In terms

of the chart, for the accident of the year 2009, the

notional income of the petitioner will have to be taken at

Rs.5,000/-, but the Tribunal has taken the income at

Rs.3,000/- per month, which is on the lower side. The

multiplier applied by the Tribunal is on the higher side.

Thus, the Tribunal has compensated and awarded

Rs.2,18,880/- towards loss of future income and after

considering the nature of the injuries sustained by the

petitioner has awarded total compensation of

Rs.2,93,880/-. The compensation awarded by the

Tribunal is just and proper and does not call for

interference. Accordingly, the appeal is dismissed.

The amount in deposit be transmitted to the

Tribunal.

Sd/-

JUDGE NB*